Opinion
Slip Op. No. 12–143. Court No.: 11–00006.
2012-11-21
TIANJIN MAGNESIUM INTERNATIONAL CO., LTD., Plaintiff, v. UNITED STATES, Defendant, and US Magnesium, LLC, Defendant–Intervenor.
Riggle & Craven, (David A. Riggle), Chicago, IL, for Tianjin Magnesium International Co., Ltd., Plaintiff. Stuart F. Delery, Acting Assistant Attorney General; Jeanne E. Davidson, Director, Claudia Burke, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, (Renee Gerber); Office of Chief Counsel for Import Administration, United States Department of Commerce, Thomas M. Beline, Of Counsel, for the United States, Defendant.
Riggle & Craven, (David A. Riggle), Chicago, IL, for Tianjin Magnesium International Co., Ltd., Plaintiff. Stuart F. Delery, Acting Assistant Attorney General; Jeanne E. Davidson, Director, Claudia Burke, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, (Renee Gerber); Office of Chief Counsel for Import Administration, United States Department of Commerce, Thomas M. Beline, Of Counsel, for the United States, Defendant.
King & Spalding, LLP, (Stephen A. Jones, Washington, DC, and Jeffrey B. Denning), for U.S. Magnesium, LLC, Defendant–Intervenor.
MEMORANDUM ORDER
TSOUCALAS, Senior Judge:
This court, having considered the remand determination and the response briefs, finds that the Department of Commerce (“Commerce”) substantially complied with this court's order in Tianjin Magnesium International Co. v. United States, 36 CIT ––––, 844 F.Supp.2d 1342 (2012), and accordingly accepts the remand results in their entirety.
In multiple proceedings before Commerce, including those leading to the present action, Tianjin Magnesium International Co. (“TMI”) engaged in intentionally fraudulent conduct in an attempt to obtain lower dumping margins. Tianjin Magnesium, 36 CIT at –––– – ––––, 844 F.Supp.2d at 1344–46. Although the court is not aware of any identical misconduct during this appeal, the court finds it troubling that TMI employed other tactics designed to mislead the court and the other parties to this action. Specifically, TMI did not submit its rebuttal brief objecting to the chosen financial surrogate on time in the proceedings below—rendering the argument procedurally deficient on appeal for TMI's failure to exhaust—but nevertheless chose to repeat its objection before this court without adequately disclosing or explaining its failure below. See Pl.'s Mem. Supp. Mot. J. Agency R. at 13–24. TMI continued to argue the point in its reply brief despite exhaustive and accurate refutations from both Commerce and defendant-intervenors. See id. at 2–10; Def.'s Mem. Opp'n Pl.'s Mot. J. Agency R. & Def.-Intervenor's Mot. J. Agency R. at 17–19; Def.-Intervenor's Mem. Opp'n Pl.'s Mot. J. Agency R. at 5–11.
“Although its discretionary power to award costs has been infrequently exercised,” Former Employees of Bass Enterprises Production Co. v. United States, 13 CIT 372, 374, 1989 WL 47367 (1989) (not reported in the Federal Supplement), the Court of International Trade unquestionably retains the authority to do so. USCIT R. 54(d); see28 U.S.C. §§ 1920, 1923, 1924 (2006). TMI's actions constitute a frivolous drain of the court's resources, potentially within the scope of the court's authority to impose sanctions under Local Rule 11(c). SeeUSCIT R. 11(b)(2), (c). Given TMI's conduct, this court finds awarding costs to be an appropriate exercise of its discretion. See USCIT LR 54(d)(1); 28 U.S.C. §§ 1920, 1923, 1924. TMI's actions will not be tolerated in future proceedings before this court.
In accordance with the foregoing, it is hereby
ORDERED that the remand results are accepted in their entirety; and it is further
ORDERED that costs will be taxed after defendant and defendant-intervenor submit their affidavits of itemized costs pursuant to USCIT R. 54(d) and after plaintiff has had an opportunity to respond thereto; and it is further
ORDERED that this action is dismissed.